Della Cooley v. Nancy Berryhill

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued April 25, 2018
Decided July 6, 2018
Before
DANIEL A. MANION, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
AMY C. BARRETT, Circuit Judge
No. 17-2239
DELLA M. COOLEY, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of
Illinois, Eastern Division.
v.
No. 16 C 0016
NANCY A. BERRYHILL,
Acting Commissioner of Social Security, Sidney I. Schenkier,
Defendant-Appellee. Magistrate Judge.
ORDER
Della Cooley, now 55, applied for Disability Insurance Benefits based on a litany
of ailments—sleep apnea, fibromyalgia, carpal tunnel syndrome, and high blood
pressure. But an administrative law judge concluded that these impairments were not
disabling. Cooley contends on appeal that the ALJ erred by not properly assessing the
impact of her daytime somnolence on her ability to work, and by ignoring evidence of
her need to frequently alternate between sitting and standing. We affirm.
No. 17-2239 Page 2
Cooley says that she was fired from her customer-service job in 2007 after taking
time off for pain in her back, neck, and hand. She tried to work again in 2010, but
resigned six weeks later because of issues with concentration, sleepiness, and pain. The
Social Security Administration concluded that this was an “unsuccessful work
attempt”—in effect, evidence that she could not maintain that job because of her
medical condition. In 2011 Cooley applied for disability benefits based on her various
ailments, alleging an onset date of October 2008.
Cooley sought treatment from primary-care doctor Sanjay Pethkar over
intermittent years (2006–08 and 2011–14). Dr. Pethkar diagnosed Cooley at various
times with sleep apnea, high blood pressure, carpal tunnel syndrome, fibromyalgia,
radiculopathy, and chronic-fatigue syndrome. He diagnosed Cooley with sleep-related
issues but did not elaborate. For instance, in the “Reason for Visit” section of a 2014
treatment form, he simply wrote, “OSA cannot work.” In connection with Cooley’s
application for benefits, Dr. Pethkar completed a questionnaire about her functional
capacity and opined that she “occasionally” (defined on the form as 1–33 percent of the
time) could sit, stand, and walk.
Dr. Kimberly Middleton, a family-medicine doctor, examined Cooley at the state
agency’s request. She noted that Cooley experienced “mild tenderness” at several
fibromyalgia trigger points, but did not indicate any issues regarding Cooley’s strength,
gait, or balance. Dr. Middleton concluded that Cooley’s symptoms were consistent with
both fibromyalgia and carpal tunnel syndrome. She also wrote that Cooley had a
history of “morning sluggishness” and “daytime hypersomnolence.” She added that
Cooley’s reports of sleep apnea seemed credible, but that she could not corroborate
Cooley’s complaints without conducting a sleep study.
The next month, a state-agency physician specializing in family medicine, Dr.
Richard Bilinsky, reviewed Cooley’s medical records and remarked that her complaints
seemed “somewhat excessive” compared to the objective medical evidence. He opined
that Cooley could stand, walk, and sit for about six hours per eight-hour period.
Also in May 2011, Jeff Floyd, a physician assistant from Dr. Pethkar’s practice,
opined that Cooley could sit for only fifteen to twenty minutes before needing to stand,
could stand for ten to fifteen minutes before needing to change positions, and needed
unscheduled breaks during a workday. Floyd also noted that Cooley could not sit or
stand for more than two hours in an eight-hour workday and that Cooley had
symptoms of sleep apnea, fatigue, and excessive sleepiness.
No. 17-2239 Page 3
At a hearing before an administrative law judge in May 2012, Cooley testified
about her limitations. She explained that she tried working again in 2010, but quit after
six weeks because she had trouble concentrating, felt light-headed, and had pain in her
back and neck. She also said that she could not concentrate well enough to pass
required tests during training, and had issues falling asleep at work. Her daily activities
included driving short distances, spending time with her grandchildren, grocery
shopping, cooking, and cleaning, though she said she could not stand for more than 30–
40 minutes at a time.
The ALJ found Cooley not disabled, but the Appeals Council vacated this
decision because the ALJ failed to evaluate properly Cooley’s fibromyalgia, her treating
physician’s opinion, and the effect that her increase in age—she since had turned 50—
had on her claim.
At a second hearing in 2014, Cooley testified again about her need to alternate
frequently between sitting and standing. She stated that she could sit comfortably only
for fifteen to twenty minutes at a time, and could stand at most for only thirty minutes.
She also testified that she struggled to sleep at night, despite using a Continuous
Positive Airway Pressure (CPAP) machine, and that she occasionally would “nod off”
while talking to people at work.
Also at the hearing, testimony about Cooley’s impairments between 2008 and
2012 was presented by medical expert Dr. Sai Nimmagadda. Dr. Nimmagadda noted
that there were no objective records corroborating Cooley’s complaints of sleep issues,
as the record consisted almost entirely of transcriptions of Cooley’s own subjective
complaints.
A vocational expert then testified that Cooley, based on the residual functional
capacity described by the ALJ (i.e., being able occasionally to lift and carry
twenty pounds, frequently ten; able to sit, stand, and walk for six hours of an eight-hour
day), could perform her past customer-service work. The vocational expert added that
someone limited to occasional sitting, standing, and walking would be able to perform
a light range of work. But someone whose sitting and standing limitations required her
to be off-task for more than fifteen percent of the day, the VE said, would be unable to
sustain work.
No. 17-2239 Page 4
The ALJ then denied benefits using the 5-step framework, see 20 C.F.R.
§§ 404.1520(a), 416.920(a). The ALJ determined that Cooley had not engaged in
substantial gainful activity since her alleged onset in October 2008 (Step 1); she suffered
from several severe impairments—sleep apnea, fibromyalgia/ chronic fatigue
syndrome, carpal tunnel syndrome, headaches, and chronic pain syndrome (Step 2);
and these impairments, individually or in combination, did not satisfy a listing for
presumptive disability (Step 3). In assessing Cooley’s residual functional capacity, the
ALJ found that her impairments reasonably could be expected to produce her alleged
symptoms, but her testimony concerning the limiting effects of these symptoms was
“not entirely consistent with the overall record” because she engaged in a “fair level” of
daily activities and her complaints were not corroborated by medical evidence. The ALJ
concluded that Cooley had the residual functional capacity to perform her past relevant
work as a customer-service representative (Step 4). Alternatively, the ALJ concluded
that Cooley could perform a number of other jobs, including rental clerk, counter clerk,
and hostess (Step 5).
The agency’s Appeals Council denied review, making the ALJ’s decision final.
Scrogham v. Colvin, 765 F.3d 685, 695 (7th Cir. 2014). On judicial review, a magistrate
judge presiding by consent, see 28 U.S.C. § 636(c), upheld the denial of benefits.
Cooley first argues that the ALJ did not sufficiently consider the effect of her
daytime somnolence on her residual functional capacity. In particular, she says that the
ALJ overlooked (1) Dr. Pethkar’s opinion that she could not work because of her sleep
apnea, (2) Dr. Middleton’s reference to Cooley’s “sluggishness” and
“hypersomnolence,” (3) the physician assistant’s statement that Cooley’s sleep issues
would require her to take breaks at unpredictable times, and (4) Cooley’s testimony that
her somnolence issues caused her failed work attempt in 2010.
The ALJ properly assessed the three medical opinions. She appropriately
justified discounting Dr. Pethkar’s statements about Cooley’s sleep issues because they
were conclusory and not supported by any clinical basis. An ALJ may discount a
doctor’s statements that are not adequately explained if the treatment notes do not
clarify the doctor’s reasoning. See Schaaf v. Astrue, 602 F.3d 869, 875 (7th Cir. 2010); Rice
v. Barnhart, 384 F.3d 363, 371 (7th Cir. 2004). And Dr. Pethkar’s notes did not
substantiate his opinion regarding Cooley’s sleep issues. Similarly, the notes that Dr.
Middleton and Floyd (the physician assistant) took of Cooley’s fatigue appear simply to
recite her own subjective complaints. The ALJ was thus not required to rely on these
statements.
No. 17-2239 Page 5
In support of her argument that her somnolence issues render her disabled,
Cooley points to the Social Security Administration’s determination that her return to
work in 2010 was an “unsuccessful work attempt”—an acknowledgment, in effect, that
she could not maintain her job because of her medical condition, see SSR 84-25, 1984 WL
49799, at *2. Given this evidence, Cooley challenges the ALJ’s finding at step four that
she could return to her past customer-service job.
But Cooley misapprehends the nature of the ALJ’s inquiry into disability. That a
claimant’s medical condition prevents her from performing one specific job does not
automatically qualify her as disabled. An employee who may not be able to perform
excessive functional demands of a particular job required by one employer could still
potentially perform “the functional demands and job duties as generally required by
employers throughout the economy.” See SSR 82-61, 1982 WL 31387, at *2; Hughes v.
Astrue, 705 F.3d 276, 279 (7th Cir. 2013); Smith v. Barnhart, 388 F.3d 251, 253 (7th Cir.
2004). For example, Cooley testified that she could not perform her former customer-
service job, in part because she could not concentrate well enough to pass certain tests
during training. But the definition of “customer-complaint clerk” in the Dictionary of
Occupational Titles does not mention this type of training requirement, meaning that
Cooley may not face the same tests if she undertakes training for this same type of job
with a different employer. See DEP’T OF LABOR, DICTIONARY OF OCCUPATIONAL TITLES
§ 241.367-014 (4th ed. rev. 1991), available at www.//www/oalj.dol.gov/
PUBLIC/DOT/REFERENCES/DOT02B.HTM.
In any event, any error on the ALJ’s part in determining that Cooley could
perform her past work was harmless. The ALJ went on to find at step five that Cooley
could have worked in a significant number of other jobs (such as “rental clerk,”
“counter clerk,” and “hostess,” and so he reached the same not-disabled determination
this alternate analysis. See Diaz v. Chater, 55 F.3d 300, 307 (7th Cir. 1995) (explaining that
any error surrounding ALJ’s determination that claimant could perform light work was
harmless when substantial evidence supported conclusion that claimant could perform
sedentary work).
Next, Cooley argues that the ALJ failed to consider her need to alternate
between sitting and standing when determining her residual functional capacity. Most
significantly, Cooley says that the ALJ ignored (1) Dr. Pethkar’s opinion, (2) the
physician assistant’s opinion, and (3) Cooley’s own testimony.
No. 17-2239 Page 6
The ALJ adequately considered the opinions of both Dr. Pethkar and his assistant
Floyd towards Cooley’s sitting and standing limitations. We begin with Floyd, whose
opinion is more straightforward. The ALJ appropriately rejected Floyd’s
unsubstantiated opinion—in which he stated that Cooley’s limitations were more
extreme than did any doctor of record. Because Floyd offered no explanation for his
opinion, the ALJ was entitled to discount it. See Denton v. Astrue, 596 F.3d 419, 424
(7th Cir. 2010). As for Dr. Pethkar, it is true that the ALJ did not explicitly mention his
comment that Cooley could sit and stand only “occasionally,” but this does not mean
she did not consider it as part of her overall review of the doctor’s notes. And even if
the ALJ had overlooked this opinion, this error was harmless. The vocational expert
confirmed that someone limited to “occasional” sitting and standing, consistent with
the limitations Dr. Pethkar opined, could still perform a range of light work if he or she
remained on task for eighty-five percent of the day. And we will not remand a case
when we are convinced the ALJ would have reached the same result despite evidence
of a claimant’s greater limitation. McKinzey v. Astrue, 641 F.3d 884, 892 (7th Cir. 2011).
Finally, we conclude that the ALJ adequately justified her decision to discredit
Cooley’s account of her symptoms. We afford an ALJ’s credibility determination special
deference, and will reverse only if the claimant can demonstrate that the determination
was “patently wrong.” Jens v. Barnhart, 347 F.3d 209, 213 (7th Cir. 2003). The ALJ
acceptably justified her finding that Cooley’s activities with daily living were not
consistent with her descriptions of her ailments. In doing so, the ALJ properly
considered the qualifications Cooley put on these activities, noting that Cooley
completed household chores with “recurrent breaks.” See Craft v. Astrue, 539 F.3d 668,
680 (7th Cir. 2008). Further, the ALJ was permitted to compare Cooley’s 2012 testimony
regarding these activities, including her comment that she could stand 30–40 minutes
while cooking and doing dishes, with her later statements that her ability to sit and
stand was more limited. We look only to whether the ALJ’s credibility determination
was patently wrong, and Cooley’s inconsistent testimony demonstrates that it was not.
See Jones v. Astrue, 623 F.3d 1155, 1162 (7th Cir. 2010) (“We cannot…substitute our
judgment for the ALJ’s when considering the weight of the evidence, and [the plaintiff]
must do more than point to a different conclusion that the ALJ could have reached to
demonstrate that the credibility determination was patently wrong.”)
A final note: The ALJ erred in finding that Cooley’s symptoms were not
supported by the medical record, when Cooley did in fact testify about pain. Testimony
about pain cannot be disregarded simply because it was not corroborated by objective
evidence. Hill v. Colvin, 807 F.3d 862, 869 (7th Cir. 2015). True, the consistency of her
No. 17-2239 Page 7
complaints with the medical record may be considered as probative of her credibility,
Jones, 623 F.3d at 1161, but the ALJ did not explain how the medical record contradicted
Cooley’s statements. While the ALJ noted that physical examinations reflect that Cooley
had normal gait, muscle strength, and neurological testing, she does not explain why
such findings were inconsistent with Cooley’s account of her limitations. Ultimately,
however, any errors concerning the inconsistency of Cooley’s complaints with the
medical record do not undermine the evidence that does support the credibility
determination. Thus, we cannot say the ALJ’s decision was patently wrong.
AFFIRMED